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COURT OF
APPEALS DECISION DATED AND
RELEASED May
23, 1996 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-3136
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
CITY
OF MADISON,
Plaintiff-Appellant,
v.
JOHN
P. KAVANAUGH,
Defendant-Respondent.
APPEAL
from an order of the circuit court for Dane County: STUART A. SCHWARTZ, Judge.
Reversed.
VERGERONT,
J.[1] The
City of Madison appeals from an order granting John Kavanaugh's motion to
suppress certain evidence obtained after a police officer stopped Kavanaugh's
vehicle.[2] The issue is whether the police officer had
reasonable suspicion to stop the vehicle.
We resolve this issue in favor of the City and reverse.
BACKGROUND
Kavanaugh
was charged with operating a motor vehicle while under the influence of an
intoxicant in violation of § 346.63(1)(a) and (b), Stats. The facts
surrounding the stop of Kavanaugh's vehicle are as follows. On May 8, 1995, at approximately 11:00 p.m.,
Officer Mark Kinderman of the City of Madison Police Department was parked in
the parking lot of Bank One, located on the corner of the intersection of East
Washington Avenue, Wright Street and Fair Oaks Avenue. Traffic conditions were relatively
light. While he was completing reports
in his squad car, Kinderman heard a crash.
The crash sounded like metal crunching and came from the direction of
the intersection of East Washington and Fair Oaks. Kinderman could not see the intersection from where he was
parked, so he moved his squad car forward in the parking lot for an
unobstructed view. At this point, he
observed Kavanaugh's vehicle stopped on Fair Oaks approximately forty feet
short of the stoplight at the intersection.
Kinderman did not observe any other vehicles on Fair Oaks in the
intersection or in the area of Kavanaugh's vehicle.
On
direct examination, Kinderman testified that Kavanaugh's vehicle appeared to be
up over the curb and on the sidewalk near a metal fence that runs along Gardner
Bakery on Fair Oaks. Kinderman then
observed Kavanaugh back up a short distance, proceed north on Fair Oaks to the
intersection, and turn onto Wright Street.
Kinderman suspected the vehicle had struck the fence and initiated a
stop of Kavanaugh's vehicle. Kinderman
did not inspect the fence prior to initiating the stop. Kavanaugh was ultimately arrested for
operating a motor vehicle while under the influence of an intoxicant.
On
cross-examination, Kinderman testified that while it appeared Kavanaugh's
vehicle was up over the curb and on the sidewalk, he did not know whether or
not it was. Kinderman could not say how
far over the curb Kavanaugh's vehicle was, and did not notice whether the
vehicle moved up and down as Kavanaugh backed up. Kinderman conceded that the vehicle may actually have been on the
roadway and only thought it was up against the fence because the fence is so
close to the roadway. Although
Kinderman testified on direct examination that he believed that there was
sidewalk between the Gardner Bakery fence and the road, he acknowledged during
cross-examination when shown a photograph of the area that the space between
the fence and the road is a terrace, not a sidewalk. Kinderman also acknowledged that what he had been referring to as
the Gardner Bakery fence was actually a fence probably installed for a
pedestrian underpass.
In
response to questioning by the trial court, Kinderman testified as follows:
THE
COURT: All right. Did you observe that vehicle at any time
actually on the terrace?
THE
WITNESS: I can't say exactly where it
was. It just appeared to me that it was
so close to the fence that it was off the road.
....
THE
COURT: All right. And as you are
sitting here today, can you tell me that it was ever off the roadway?
THE WITNESS: All
I can say is that it appeared it was alongside the fence, and I can't say if it
was off the roadway or not. That's all
I can say.
The
trial court granted Kavanaugh's motion to suppress all evidence obtained after
the stop on the grounds that there was no reasonable suspicion for the
stop. The trial court stated:
What I find here is that the subsequent events, although
very weak ... lead to under the totality of the circumstances the officer
making his determination are all predicated upon a false assumption to begin
with, and that is the vehicle was not on the street. If in point of fact the officer could see clearly that the
vehicle was not on the terrace, what we would have had was a crash and the car
backing up a little bit and then proceeding forward. I don't believe that the officer who again was honest today and
said he really couldn't tell where the car was, that this kind of situation
leads to enough articulable suspicion to make the stop. The officer says the car could very well
have been in the street, and that leaves me with just a crashing sound. The car backing up and proceeding forward, I
don't think that's grounds to pull a vehicle over unless the backing up in any
way endangered pedestrians or other vehicles, and there's no testimony of
that. The officer has today under
cross-examination conceded that first, he thought there was a sidewalk there
and there wasn't a sidewalk there. All
of those factors went into his initial assessment.
In
reviewing a trial court's decision on a motion to suppress evidence, we must
uphold the court's findings of fact unless they are against the great weight
and clear preponderance of the evidence.
See State v. Whitrock, 161 Wis.2d 960, 973, 468
N.W.2d 696, 701 (1991). However,
whether a search and seizure has occurred and, if so, whether it meets
statutory and constitutional standards is a question of law subject to our de
novo review. State v. Richardson,
156 Wis.2d 128, 137-38, 456 N.W.2d 830, 833 (1990).
DISCUSSION
Both
the Fourth Amendment to the United States Constitution and art. 1, § 11 of the
Wisconsin Constitution guarantee the right of citizens to be free from
unreasonable searches and seizures.
Stopping an automobile and detaining its occupant is a
"seizure" which triggers the protections of the Fourth
Amendment. State v. Guzy,
139 Wis.2d 663, 674, 407 N.W.2d 548, 553, cert. denied, 484 U.S. 979
(1987).
In
Terry v. Ohio, 392 U.S. 1 (1968), the United States Supreme Court
held that under the Fourth Amendment, if a police officer observes unusual
conduct that leads the officer to reasonably suspect, in light of his or her
experience, that criminal activity may be afoot, the officer may briefly stop
the suspicious person and make reasonable inquiries aimed at confirming or
dispelling his or her suspicions, even though there is no probable cause to
arrest. Terry, 392 U.S.
at 20-22. The purpose of the stop is to
determine the identity of the suspicious individual or to maintain the status
quo momentarily while obtaining more information. Adams v. Williams, 407 U.S. 143, 146 (1972). An investigatory stop is permissible when
the person's conduct may constitute only a civil forfeiture, i.e., a
traffic violation. See State
v. Krier, 165 Wis.2d 673, 678, 478 N.W.2d 63, 65 (Ct. App. 1991).
The
officer's reasonable suspicion must be based on specific and articulable facts
that, taken together with rational inferences from those facts, reasonably
warrant the intrusion. Terry,
392 U.S. at 21. In evaluating the
reasonableness of the stop, the facts must be judged against an objective
standard of whether the facts available to the officer at the moment of the
stop warrant a reasonable person in the belief "that the action taken was
appropriate." Terry,
392 U.S. at 21-22. The same test
applies to the stopping of a vehicle and the detention of its occupant. Richardson, 156 Wis.2d at 139,
456 N.W.2d at 834. The focus of an
investigatory stop is on reasonableness, and the determination depends on the
totality of the circumstances. Id.
We
conclude that, under the totality of the circumstances, Officer Kinderman had
reasonable suspicion to stop Kavanaugh's vehicle. Kinderman heard a crash that he originally believed to be a motor
vehicle accident. The crash noise
sounded like crunching metal and came from the direction of the intersection of
Fair Oaks and East Washington. After
moving forward in the parking lot to get an unobstructed view of the
intersection, the only vehicle Kinderman observed in the area was Kavanaugh's
vehicle. The vehicle was stopped
approximately forty feet short of the stoplight at the intersection. Kinderman believed that the vehicle was very
close to the Gardner Bakery fence.
Kinderman then observed the vehicle back up ten to fifteen feet before
proceeding through the intersection.
These facts available to the officer warranted a reasonable suspicion
that Kavanaugh had crashed his vehicle against the fence. A brief stop to obtain information from
Kavanaugh was reasonable.
It
is true that Kinderman could not say at the hearing whether the vehicle was, in
fact, off the roadway. However, the
trial court's conclusion that the only specific and articulable facts available
to the officer at the moment of the stop were the sound of the crash and the
act of backing up ten or fifteen feet is incorrect. It is undisputed that when the officer observed the vehicle
stopped approximately forty feet short of the intersection, it was "so
close to" or "alongside" the fence. This is another specific and articulable fact available to the
officer supporting a reasonable suspicion that Kavanaugh had crashed his
vehicle against the fence.
The
trial court also concluded that because Kinderman could not testify that he was
certain that Kavanaugh's vehicle was off the roadway, he did not have
reasonable suspicion that Kavanaugh struck the fence. This conclusion is erroneous.
While Kinderman was unable to state definitively that Kavanaugh's
vehicle was off the roadway, he testified that he inferred from the fact that
Kavanaugh was unusually close to the fence that Kavanaugh was off the roadway
and had struck the fence. A police
officer may base his or her reasonable suspicion on specific and articulable
facts and the rational inferences drawn from those facts. Terry, 392 U.S. at 21. The inference Kinderman drew was rational.
It
is also true that Kinderman believed there was a sidewalk between the fence and
the street, when, in fact, it is a terrace.
But we fail to see how this bears on Kinderman's reasonable suspicion
that Kavanaugh had struck the fence.
Kinderman's reasonable suspicion was based on the sound of a crash, the
fact that Kavanaugh's vehicle was stopped forty feet short of the intersection,
the fact that Kavanaugh's vehicle was the only vehicle in the area, the
proximity of Kavanaugh's vehicle to the fence, and the act of backing up. It was never suggested that Kinderman's reasonable
suspicion was based in any part on his impression that the space between the
fence and the street was paved.
Kavanaugh
finally argues that Kinderman "had no objective evidence that any offense
had been committed." However, the
Fourth Amendment does not require objective evidence that any offense has been
committed before an investigative stop may be initiated. The principal purpose of the investigative
stop is to quickly resolve the ambiguity of suspicious activity and establish
whether the suspect's activity is legal or illegal. State v. Jackson, 147 Wis.2d 824, 835, 434 N.W.2d
386, 391 (1989). Under the totality of
the circumstances, Kinderman had reasonable suspicion to investigate
Kavanaugh's activity.
By
the Court.—Order reversed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.